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“Frank Iacobucci as Constitution-Maker: From the Quebec Veto Reference, to the Meech Lake Accord and the Quebec Secession Reference” (2007) 57 University of Toronto Law Journal 165-193 (with J.-F. Gaudreault-DesBiens).
Frank Iacobucci occupies a unique place in Canadian constitutional history. As a Justice of the Supreme Court of Canada for thirteen years, he played a central role in the development of Canadian constitutional jurisprudence. Yet prior to his appointment to the bench, he served as deputy attorney-general of Canada between 1985 and 1988 and was a principal member of the federal team in the negotiations over the Meech Lake Accord. This accord was not only a legal but also a political document, reflecting and advancing a view of Quebec’s place in the federation and proposing a set of constitutional amendments that would have implemented that vision. Although the negotiations failed, we are arguably still living with the consequences of that failure today. Does exploring Iacobucci’s views on his role as constitution maker during the Meech Lake saga shed light on his subsequent career as constitutional interpreter on the bench? The natural place to explore this link is the case in which the Court was thrust into the heart of the national unity dispute—the Secession Reference. At the heart of the dispute between Quebec and Canada that led to the Secession Reference was the applicability of the constitution’s amending rules. Since the Court legitimized the constitutional politics that made the amending rules possible—in the Patriation Reference and the Quebec Veto Reference—Quebec’s challenge to the legitimacy of those amendments was also a challenge to the role of the Court in producing them. Both 1982 and Meech Lake make sense of the most puzzling aspects of the Secession Reference.